Case 1:18-cv-08865-AJN Document 80 Filed 03/29/22 Page 1 of 16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES SECURITIES AND

EXCHANGE COMMISSION,

Plaintiff,
v. Civil Action No. 1:18-cv-08865-AJN

ELON MUSK,

Defendant.

DEFENDANT ELON MUSK’S REPLY IN FURTHER SUPPORT OF HIS

MOTION TO QUASH & TO TERMINATE CONSENT DECREE
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TABLE OF CONTENTS

I. INTRODUCTION...................................................................................................... 1

II. THE CHALLENGED REQUESTS SHOULD BE QUASHED. ................................ 1

A. This Court Has Jurisdiction Over The Challenged Requests. ........................ 1

B. The Challenged Requests Have No Legitimate Investigatory Purpose........... 3

1. The Formal Order Is Not Carte Blanche For Investigation Of

Compliance With The Consent Decree. ............................................... 3

2. Rule 13a-15 Does Not Give The SEC Unbridled License To

Investigate Any And All Executive Communications. ......................... 4

C. The Subpoena Was Issued In Bad Faith. ........................................................ 6

III. THE CONSENT DECREE SHOULD BE VACATED. ............................................. 7

A. The Consent Decree Violates The First Amendment. ..................................... 7

B. The SEC’s Wrongful Prosecution Cannot Be Recast As Mr. Musk’s

Regret.............................................................................................................. 9

C. The SEC Has Made Compliance Unworkable With Its Unrelenting

Investigations And Demands For Privileged Documents. ............................... 9

D. The SEC Confuses What Is Required By The Consent Decree And

What The Securities Laws Mandate. ............................................................ 10

IV. CONCLUSION ........................................................................................................ 10

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TABLE OF AUTHORITIES

Page

CASES
Blum v. Yaretsky,
457 U.S. 991 (1982).......................................................................................................... 7
Citadel Broad. Co.,
Mem. Op. and Order, 17 F.C.C. Rcd 483 (2002) ................................................................. 9
Crosby v. Bradstreet,
312 F.2d 483 (2d. Cir. 1963) ......................................................................................... 1, 8
Exxon Mobil Corp. v. Schneiderman,
316 F. Supp. 3d 679 (S.D.N.Y. 2018) ................................................................................ 3
Grenda v. S.E.C.,
2017 WL 4053821 (W.D.N.Y. Sept. 14, 2017)............................................................... 2, 6
Hampton v. S.E.C.,
2018 WL 4853902 (D.D.C. Oct. 5, 2018) .......................................................................... 2
In re Consol. Pretrial Proc. in Air W. Sec. Litig.,
436 F. Supp. 1281 (N.D. Cal. 1977)................................................................................... 9
In re Marriage of Baltins,
212 Cal. App. 3d 66 (Ct. App. 1989) ................................................................................. 9
In re Zarnel,
619 F.3d 156 (2d Cir. 2010) .............................................................................................. 8
In the Matter of Nikola Corp.,
Release No. 93838 (Dec. 21, 2021) .................................................................................... 5
Krantz v. BT Visual Images, L.L.C.,
89 Cal. App. 4th 164 (2001) .............................................................................................. 9
Lerman v. S.E.C.,
928 F. Supp. 2d 798 (S.D.N.Y. 2013) ................................................................................ 2
Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922 (1982).......................................................................................................... 7
Rich & Whillock, Inc. v. Ashton Dev., Inc.,
157 Cal. App. 3d 1154 (Ct. App. 1984).............................................................................. 9
RNR Enters., Inc. v. S.E.C.,
122 F.3d 93 (2d Cir. 1997) ................................................................................................ 3

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S.E.C. v. Romeril,
15 F.4th 166 (2d Cir. 2021) ........................................................................................... 7, 8
United States v. Constr. Prod. Rsch., Inc.,
73 F.3d 464 (2d Cir. 1996) ................................................................................................ 3
RULES
Guidance on the Use of Company Web Sites,
73 Fed. Reg. 45862-01, 45873 (Aug. 1, 2008)..................................................................... 5
SEC Release No. 33-8124, Certification of Disclosure in Companies’ Quarterly and
Annual Reports (2002)....................................................................................................... 4
OTHER AUTHORITIES
Eminem, “Without Me” (2002) ................................................................................................ 8

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I. INTRODUCTION
The SEC argues that it has unfettered authority to subpoena whatever it wants, whenever

it wants, so long as it obtains a formal order. But the SEC’s investigatory power has limits,

especially once, as here, it is leveraging a binding order specially entered and superintended by

this Court. The SEC seeks to justify its misconduct by relying on Rule 13a-15—a circumscribed

rule that does not govern the conduct it is investigating: Mr. Musk’s tweets. And the Second

Circuit’s binding precedent in Crosby v. Bradstreet Co., 312 F.2d 483 (2d Cir. 1963), requires

that the Court either terminate the consent decree or, at minimum, strike the constitutionally

overbroad prior restraint on Mr. Musk’s speech.

II. THE CHALLENGED REQUESTS SHOULD BE QUASHED.

A. This Court Has Jurisdiction Over The Challenged Requests.
This Court plainly has jurisdiction over its judgments; the SEC’s arguments to the

contrary only seek to circumvent this Court’s authority and directly police Mr. Musk’s speech

without answering to the one tribunal uniquely positioned to adjudicate disputes between these

parties, over these issues. Dkt. No. 71 (“Mot.”) at 1–2; see also Dkt. No. 65 (providing Mr.

Musk may make a motion to quash). As this Court knows, the SEC entered into a bilateral,

ongoing consent decree that this Court approved and continues to superintend between the

parties. Thereafter, the SEC ran to this Court seeking relief when it believed that Mr. Musk did

not comply with Tesla’s disclosure controls, alleging a violation of the consent decree. See Dkt.

No. 18. Now, the SEC is telling the Court that it lacks jurisdiction over the same claim. The

SEC’s actions are nothing more than improper forum shopping.

In its response, the SEC glaringly omits that its subpoenas specifically cite “the final

judgment or amended final judgment in S.E.C v. Musk, 1:18-cv-8865-AJN (S.D.N.Y.)” and “the

final judgment or amended final judgment in S.E.C v. Tesla, 1:18-cv-8947-AJN (S.D.N.Y.).”

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See Mot. at 3; see also infra at 3–4 (SEC’s misrepresentations of its subpoenas). Notably,

Mr. Musk has not asked this Court to quash the portions of the subpoena unrelated to the consent

decree. He merely seeks relief that this Court is specially situated to provide: supervision over a

party to a consent decree issued by this Court. The SEC should no more be able to dodge such

supervision than Mr. Musk can.

Further, the SEC provides no support for the jurisdictional bar it seeks to impose on pre -

enforcement challenges to SEC subpoenas. The cases cited by the Commission pertaining to

sovereign immunity are legally and factually inapposite. None involved the enforcement of a

court-ordered consent decree; rather, all involved complaints alleging affirmative claims for

abuse of process by the SEC and demanding declaratory and injunctive relief, as well as

monetary damages. Dkt. No. 78 (“Resp.”) at 5–6. Mr. Musk has not filed a complaint against

the SEC nor sought monetary damages, and there is no question of sovereign immunity because

the SEC voluntarily selected this Court as the forum for its suit when it could have filed an

administrative proceeding. The SEC also filed the joint request for this Court to retain

jurisdiction. Dkt. No. 13. Even outside the consent decree context, courts have considered

motions to quash pre-enforcement administrative subpoenas on the merits, particularly when

third-party rights are concerned, as here.1 See, e.g., Grenda v. S.E.C., 2017 WL 4053821, at *2

(W.D.N.Y. Sept. 14, 2017); Hampton v. S.E.C., 2018 WL 4853902, at *6 (D.D.C. Oct. 5, 2018);

Lerman v. S.E.C., 928 F. Supp. 2d 798, 805 (S.D.N.Y. 2013).2

Prudential concerns further support this Court’s exercise of jurisdiction. It makes little

sense to require that Mr. Musk “wait-and-see” if the SEC initiates a Section 78u(c) proceeding in

1 Mr. Musk is a party to the consent decree, but he is a third-party subpoena recipient.
2 Unless otherwise indicated, this brief omits from quotations and citations all internal
quotation marks, footnotes, and citations.

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in this Court or in another,3 and potentially litigate a venue transfer motion, all for this issue to be

re-briefed and decided in a posture substantively identical to the current one. See Exxon Mobil

Corp. v. Schneiderman, 316 F. Supp. 3d 679, 696 (S.D.N.Y. 2018) (declining to exercise

prudential ripeness doctrine and ruling on motion to quash pre-enforcement subpoena where

party had been producing documents in connection with prior subpoenas).

B. The Challenged Requests Have No Legitimate Investigatory Purpose.

The Commission offers roving references to its broad authority under the Formal Orde r,

Rule 13a-15, and the judgment and amended judgment in this case to justify the Challenged

Requests. But those authorities are each specific and bounded, and none—together or apart—

supply the Commission the legitimate investigatory purpose required under law.

1. The Formal Order Is Not Carte Blanche For Investigation Of

Compliance With The Consent Decree.
The Commission relies heavily on the Formal Order as legal basis for the Challenged

Requests. See, e.g., Resp. at 7; see also id. at 4–6, 9–10, 16. But the Formal Order is not itself

evidence of the legitimacy of the subpoena, no matter how many times the Commission notes its

existence. See Mot. at 8–9; United States v. Constr. Prod. Rsch., Inc., 73 F.3d 464, 471 (2d Cir.

1996) (rejecting idea that “an agency may conduct any investigation it may conjure up”); RNR

Enters., Inc. v. S.E.C., 122 F.3d 93, 97 (2d Cir. 1997) (inquiring whether the formal order

reflects a legitimate investigatory purpose). The Formal Order is not an open invitation for any

fishing expedition the Commission may wish to pursue, and the Commission errs in assuming

that a court may not look behind its veil.

To that end, the SEC twice denies that “its subpoenas are issued under the consent

decree,” instead stating unequivocally “the subpoenas were issued under the authority granted by

3 When asked, the SEC would not commit to bring such an action before Your Honor.

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the Formal Order of Investigation.” Resp. at 5 n.2; see also id. at 16. To support that claim, the

SEC points out that the Musk and Tesla subpoenas “refer to” the Formal Order, and “do not bear

the caption for S.E.C v. Musk or S.E.C v. Tesla.” Resp. at 4. While it may be strictly true that

this case caption is not at the top of the Tesla subpoena, that subpoena twice asks for documents

related to compliance with “the final judgment or amended final judgment in SEC v. Musk, 1:18-

cv-8865-AJN (S.D.N.Y.).” Mot. at 3. It should suffice to note that the SEC is expressly trading

off consent-decree provisions that are presided over by the very same Court that the SEC is

claiming unfettered prerogatives to circumvent. Any such theory of this Court’s authority —by

which the SEC can leverage it without answering to it—is untenable.

2. Rule 13a-15 Does Not Give The SEC Unbridled License To Investigate
Any And All Executive Communications.
The SEC pairs recitations to the Formal Order with similarly unsupported reliance on

Rule 13a-15. The SEC has no authority for its naked assertion that a securities rule that governs

after-the-fact disclosures in SEC filings also requires pre-approval of tweets.

First, the SEC argues a point of first-impression, that to comply with the disclosure

controls and procedure requirements of Rule 13a-15, a company must pre-approve its

executives’ tweets. The SEC does not cite the Rule itself for this proposition; nor could it.

There is no support in law for the Commission’s propositions that (1) the rule requires pre -

approvals of any kind, as opposed to after-the-fact disclosures of material information, or (2) a

tweet constitutes a disclosure similar to an 8-K, 10-K, or 10-Q filing. Mot. at 9–13.4 Even the

SEC’s guidance makes clear that only a narrow set of executive communications fall under the

4 See also SEC Release No. 33-8124, Certification of Disclosure in Companies’

Quarterly and Annual Reports (2002), available at https://www.sec.gov/rules/final/33-8124.htm
(Rule 13a-15 was “intended to address the issuer’s controls and procedures for recording,
processing[,] summarizing and reporting the information that is required to be disclosed in
Exchange Act reports.”).

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purview of a company’s Rule 13a-15 disclosure controls—namely, those that are required in an

Exchange Act report. See Commission’s Guidance on the Use of Company Web Sites, 73 Fed.

Reg. 45862-01, 45873-74 (Aug. 7, 2008) (listing examples of communications that may require

an Exchange Act report, such as company’s waiver of its code of ethics or board policy on

director attendance at the annual meeting).

The SEC instead cites the Amended Judgment in this case, which requires pre-approval

of certain types of executive communications. Indeed, that is only further evidence that the SEC

seeks to investigate compliance with the consent decree, not Rule 13a-15. To the extent that the

Commission seeks to rely on the Complaint in S.E.C v. Tesla and In the Matter of Nikola Corp.,

Release No. 93838 (Dec. 21, 2021), those were settled matters that carry no precedential legal

value; the SEC’s theory that Rule 13a-15 covers tweets has never actually been resolved. In any

event, the misconduct alleged in those cases—material misrepresentations—differs categorically

from the communication at issue here, a Twitter poll. See generally Mot. at 11, 13–14.

Second, the SEC argues that Tesla’s representations in its 10-Ks and 10-Qs provide basis

for investigation. The SEC overstates Tesla’s representations, see Mot. at 12–13, and again

attempts to blur the distinction between Rule 13a-15 and the consent decree. Rule 13a-15

requires that Tesla make certain disclosures in Commission filings. Distinctly, the consent

decree concerns pre-clearance of certain executive communications, including Mr. Musk’s

tweets, by Tesla’s securities counsel. After a tweet is published (pre-approved or not), the SEC’s

only germane concern under Rule 13a-15 should be whether obligatory information is disclosed.5

But nowhere in its brief does the SEC cite a single example of a communication (e.g., a tweet)

5 Under Rule 13a-15, the touchstone inquiry for whether a filing is necessary is
materiality. In contrast, the Amended Judgment does not contain a materiality requirement and
encompasses a broader category of information than what is covered under the Rule.

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by Mr. Musk that contained information that Tesla was required to separately disclose in a filing

with the Commission and did not—the crux of a Rule 13a-15 analysis.6 And the SEC does not

actually allege that the tweets it complains about independently violate securities laws. Instead,

the SEC has based its investigation on whether or not tweets were pre-approved—a question that

distinctly concerns the consent decree and not Rule 13a-15.

To the extent the SEC cites Grenda v. S.E.C. to suggest that it has the power to issue

subpoenas and investigate whether a party is complying with a settlement—without any

independent violation of the securities laws—that case is inapposite because it concerned a

settlement in an SEC administrative proceeding and therefore did not implicate the ongoing

supervisory authority of a federal court. Resp. at 10, 2017 WL 4053821, at *1. As discussed at

length in the principal brief, the SEC may not make an end-run around this Court’s supervision.

Mot. at 12–16.

Nor has the SEC actually cited any support for its contention that the consent decree

“require[s] Tesla to . . . ensure that Musk actually complies with—the company’s new mandatory

controls and procedures.” Resp. at 9. Tesla is in fact complying with its obligations to institute

disclosure controls. See Mot. at 13. That the Commission prefers to substitute its judgment for

that of the independent directors whom the SEC approved to monitor disclosure controls says

nothing about what the consent decree itself mandates. 7

C. The Subpoena Was Issued In Bad Faith.

The SEC reverts to claims of its purported broad authority in response to Mr. Musk’s

well-grounded claims of harassment. What the Commission calls “new instances of conduct . . .

6 See Tesla, Dkt. 3-1 ¶ 6(c) (requiring Tesla securities counsel to make appropriate SEC
filings following communications).
7See Tesla, Dkt. 3-1 ¶ 6(b) (requiring committee oversight of the judgment, “the charter
and composition of [which] is subject to review and approval by the staff of the Commission”).

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that could implicate the federal securities laws,” Resp. at 11, are nothing more than Mr. Musk’s

tweets of a truthful fact, an aspiration, an opinion, and a question—not material

misrepresentations or fraud. Nor does the Commission address its leak of non -public

information about this investigation, which alone speaks volumes about the SEC’s bad faith

conduct toward Mr. Musk. See Mot. at 19 n.4.

III. THE CONSENT DECREE SHOULD BE VACATED.

Mr. Musk’s arguments for vacatur of the consent decree are only further vindicated by

the Commission’s response to his motion. The SEC has advanced its investigations without

regard for Mr. Musk’s constitutional rights, the limits of its authority under Rule 13a-15, or the

circumstances under which Mr. Musk signed the decree.

A. The Consent Decree Violates The First Amendment.

The Commission first attempts to evade scrutiny for its unconstitutional restraint on

Mr. Musk’s speech by arguing that an SEC-designed, court-enforced agreement involves no state

action merely because the Commission has deputized a Tesla securities lawyer to pre-approve

Mr. Musk’s tweets. But it is irrelevant whom the SEC has tasked with this duty; Mr. Musk’s

speech is restrained as a result of the SEC’s prosecution just the same. See Blum v. Yaretsky, 457

U.S. 991, 1004–05 (1982) (state action can be found where the state exercises coercive power on

the private actor, provides “significant encouragement”, or transfers into private hands

traditionally state powers); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982) (“[T]he

conduct allegedly causing the deprivation of a federal right [is] fairly attributable to the State.”).

Next, the SEC again oversteps by claiming that, just because Mr. Musk agreed to the

judgment and amended judgment in this case,8 that he waived any right to challenge the SEC’s

8 In fact, Mr. Musk was not represented by counsel at the time of the amended
judgment.

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subsequent abuse of the settlement. The Commission misplaces reliance on S.E.C v. Romeril, 15

F.4th 166 (2d Cir. 2021), which created a deep intra-circuit split and is the subject of a currently

pending petition for certiorari. But Crosby v. Bradstreet Co., 312 F.2d 483, in which the Second

Circuit vacated a consent decree on First Amendment grounds, remains the controlling law in

this Circuit. See In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (law of the circuit rule). In

Crosby, the Second Circuit held:

with the power of a court of the United States to enjoin publication of information about a
person, without regard to truth, falsity, or defamatory character of that information. Such
an injunction, enforceable through the contempt power, constitutes a prior restraint by the
United States against the publication of facts which the community has a right to know
and which [plaintiff] had and has the right to publish. The court was without power to
make such an order; that the parties may have agreed to it is immaterial.

Id. at 485 (emphasis added).

Notwithstanding, Mr. Romeril has asked the Supreme Court to resolve this split, correctly

explaining that there is little more offensive to the First Amendment than a content-based

lifetime ban on wholly truthful speech.9 Romeril, 15 F.4th 166, petition for cert. filed, (U.S. Mar.

23, 2022) (No. 21-1284) (collecting cases holding courts lack power to enforce prior restraints

and content and viewpoint-based speech restrictions as settlement conditions, even when entered

with consent). Further, the broad swath of speech subject to pre-approval, and the SEC’s

continuing and harassing investigation of Mr. Musk’s compliance with its prior restraint, raise

additional concerns beyond the no-admit-no-deny gag order at issue in Romeril.

The First Amendment requires that agencies proceed with caution when constitutional

rights are at stake, not seek to pursue any and all novel theories that broaden their authority at the

9 See generally Ex. E to Mot. The intermittent nature of the SEC’s harassment
underscores the judgment’s chilling effect because it is impossible to know ex ante what tweets
will raise the Commission’s ire. Even the SEC seems unsure of what tweets require
preclearance, leaving only two conclusions: the consent decree is unduly vague or the agency is
pursuing its investigation in bad faith.

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cost of individual freedom. Compare Eminem, “Without Me” (2002) (“The [SEC] won’t let me

be or let me be me so let me see / They tried to shut me down . . .”) with Citadel Broad. Co.,

Mem. Op. and Order, 17 F.C.C. Rcd 483 (2002) (rescinding penalty against radio station for

playing Eminem song and noting “the First Amendment is a critical constitutional limitation that

demands we proceed cautiously and with appropriate restraint”).

B. The SEC’s Wrongful Prosecution Cannot Be Recast As Mr. Musk’s Regret.

The SEC attempts to recast its own coercive prosecution of Mr. Musk, but the

Commission concedes that a wrongful act may create economic duress. Resp. at 14. See Krantz

v. BT Visual Images, L.L.C., 89 Cal. App. 4th 164, 176 (2001), as modified May 22, 2001

(“Impermissible threats include bad faith threatened use of civil process.”). And the

Commission does not even seek to defend its initial prosecution of Mr. Musk for his truthful

tweets regarding taking Tesla private. See generally Mot. at 24–25.

“[F]ear of financial ruin is uniformly recognized as a valid reason for submitting to

another party’s economic coercion.” In re Consol. Pretrial Proc. in Air W. Sec. Litig., 436 F.

Supp. 1281, 1290 (N.D. Cal. 1977). While settlements undoubtedly offer consideration to both

parties, like all contracts, that is no answer to a claim of coercion. “[A] reasonably prudent

person subject to [a wrongful] act may have no reasonable alternative but to succumb when the

only other alternative is bankruptcy or financial ruin.” Rich & Whillock, Inc. v. Ashton Dev.,

Inc., 157 Cal. App. 3d 1154, 1159 (Ct. App. 1984). And that the consent included a clause

regarding its voluntary nature does not absolve the SEC of any wrongful conduct. See In re

Marriage of Baltins, 212 Cal. App. 3d 66, 83 (Ct. App. 1989).

C. The SEC Has Made Compliance Unworkable With Its Unrelenting

Investigations And Demands For Privileged Documents.
The SEC again relies on vague citations to the Formal Order and its broad investigatory

power to justify another investigation that is patently seeking evidence of compliance with the

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consent decree. Resp. at 16; supra at 3–4. But the general investigative authority of the SEC

does nothing to inform the Court about whether the consent decree is workable.

For example, the SEC has repeatedly demanded access to documents that are attorney-

client communications or attorney work product. See, e.g., Musk Subpoena (demanding

production of “Documents related in any way to submission of the 12:17 tweet and/or the 12:23

tweet to Tesla’s General Counsel or Securities Counsel, or any counsel acting in either capacity

. . . .”). While Tesla and Mr. Musk have properly rebuked such efforts, the SEC has not relented

and has repeatedly taken the position that communications and work product reflecting attorney

advice regarding pre-approval are not privileged. Accordingly, as structured, compliance with

the consent decree cannot be confirmed without testing the outer bounds of attorney-client

privilege and the attendant constitutional concerns. See also generally Mot. at 16–20.

D. The SEC Confuses What Is Required By The Consent Decree And What The
Securities Laws Mandate.
The SEC takes the position that it may investigate any of Mr. Musk’s tweets so long as he

tweets about Tesla, regardless of whether the consent decree is vacated. Resp. at 17. As

described above, the SEC misapprehends what disclosure controls and procedures Rule 13a-15

requires. See supra at 4–6. Moreover, if the SEC is correct that Rule 13a-15 requires procedures

identical to the amended judgment, it is difficult to understand why the amended judgment

should remain in force.

IV. CONCLUSION

Mr. Musk respectfully requests the Court quash the Challenged Requests and terminate

the consent decree.

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Dated: New York, New York Respectfully submitted,

March 29, 2022
/s/ Alex Spiro
Alex Spiro
QUINN EMANUEL
URQUHART & SULLIVAN, LLP
51 Madison Avenue, 22 nd Floor
New York, NY 10010
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
alexspiro@quinnemanuel.com

Attorney for Elon Musk

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CERTIFICATE OF SERVICE
I hereby certify that I caused the foregoing Motion to be filed with the Court’s CM/ECF

system this 29th day of March, 2022, thereby causing it to be served on all counsel of record.

Dated: New York, New York Respectfully submitted,

March 29, 2022
/s/ Alex Spiro
Alex Spiro
QUINN EMANUEL
URQUHART & SULLIVAN, LLP
51 Madison Avenue, 22 nd Floor
New York, NY 10010
Telephone: (212) 849-7000
Facsimile: (212) 849-7100
alexspiro@quinnemanuel.com

Attorney for Elon Musk

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